Smt. Shashikala Pandey vs Ramesh Prasad Pandey

Dilip Raosaheb Deshmukh, J.—Heard.

On 14-02-2008, Shri B.P. Gupta, learned Counsel for the appellant placing reliance on Bani Vs. Parkash Singh, submitted that the order dated 21-07-2006 granting monthly maintenance and expenses of the appeal to the appellant was flouted by the respondent/Ramesh Prasad Pandey, and therefore, prayed that the defence of the respondent should be struck off and the appeal should be allowed while setting aside the impugned judgment and decree for divorce dated 2-5-1989 passed by the District Judge, Ambikapur.

Brief facts are that the respondent/Ramesh Prasad Pandey instituted a Civil Suit No. 12-A of 1984 u/s 13(1) of the Hindu Marriage Act, 1955(hereinafter referred to as ''the Act'') before the District Judge, Ambikapur for a decree of divorce against the appellant-wife herein on the ground that the appellant herein was suffering continuously or intermittently from mental disorder of such a kind and to such extent that he could not reasonably be expected to live with her. The appellant/defendant resisted the suit denying the allegations in toto. After recording evidence of the parties, the District Judge vide Judgment dated 2-5-1989 held that the respondent/applicant had by leading behavioral evidence proved beyond reasonable doubt that the appellant/non-applicant suffered from disease of incurable unsound mind and mental disorder of such a kind and to such an extent that the respondent/applicant could not reasonably be expected to live with the appellant-wife/non-applicant.

Being aggrieved the non-applicant/wife preferred this appeal (First Appeal No. 74/1989) on 15-06-1989. The respondent-husband Ramesh Prasad Pandey had notice of this appeal and was represented by Counsel.

An application (MCP No. 1122/2006) was filed by the appellant for grant of interim alimony and expenses of the appeal which was resisted by the respondent/Ramesh Prasad Pandey. This Court, after hearing arguments allowed the said MCP No. 1122/2006 and ordered that the respondent/Ramesh Prasad Pandey shall pay to the appellant a sum of Rs. 3000/- as the amount of expenses of the appeal and in addition to the said amount, he shall also pay a monthly maintenance in the sum of Rs. 2000/- per month to her. It was further ordered that the amount of expenses of proceedings shall be paid within a period of one month from the date of order and amount of monthly maintenance shall also be paid from the month of July 2006 onwards.

Despite the fact that the respondent was represented by Counsel on 21-07-2006, a fixed date SPC at Court expense was also sent by registered post to the respondent informing that the Counsel engaged by him had not appeared before this Court on 14-02-2008, and therefore, he was required to make necessary arrangements for his representation before this Court on 7-4-2008, failing which, the abovementioned prayer of the learned Counsel for the appellant may be considered on its merit. This fixed date SPC returned with endorsement that the addressee has left the house and hence returned to the sender.

Shri B.P. Gupta, learned Counsel for the appellant has made a statement today before this Court that the respondent-Ramesh Prasad Pandey has not paid even a penny to the appellant (who was living in a state of penury eversince the decree for divorce was passed) in compliance to the order dated 21-07-2006 passed by this Court. Placing reliance upon Vanmala Hatkar Vs. Maroti Sambhaji Hatkar, learned Counsel for the appellant prayed that for deliberate non-compliance of the order dated 21-07-2006 passed by this Court, the defence of the respondent in the petition u/s 13(1)(iii) of the Act should not be struck off but also the first appeal should be allowed while setting the impugned judgment and decree of divorce passed by the learned District Judge, Ambikapur in Civil Suit No. 12-A of 1984.

Having heard learned Counsel for the appellant, I find merit in the argument advanced. The respondent was a Divisional Engineer (Electrical) working in the Bokaro Steel Plant Steel City Dhanbad, Bihar and in this appeal, preferred in the year 1989, was duly represented before mis Court by Counsel. Not only this Counsel for the respondent resisted the prayer for interim alimony and expenses of this appeal made in MCP No. 1122/2006 and was present when the order dated 21 -07-2006 was passed by this Court.

In view of the submission made by the learned Counsel for the appellant, it is clear mat respondent has deliberately flouted the order passed by this Court on 21-7-2006. In a similar situation, in Bani W/o Parkash Singh v. Parkash Singh (Supra), the High Court of Punjab and Haryana has held as under:

No doubt wife can file a petition under Order 21, Rule 37, CPC for the recovery of this amount and the husband can be hauled up under the Contempt of Court also for disobedience of the aforesaid Court''s order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time-consuming execution proceedings for realising this amount. The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. No doubt, in this appeal he is respondent. His defence is contained in his petition filed u/s 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram 1975 HLR 15; Gurdev Kaur v. Dalip Singh 1980 HLR 240; Smt. Surinder Kaur v. Baldev Singh 1980 HLR 514; Sheela Devi v. Madan Lal 1981 HLR 126 and Sumarti Devi v. Jai Parkash 1985(1) HLR 84, it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defence is to be struck out. The consequence is that the appeal is to be allowed and his petition u/s 13 of the Act is to be dismissed.

In the case of Bani W/o Parkash Singh v. Parkash Singh (supra), the High Court has not only ordered the defence of the husband in the petition u/s 13 of the Act to be struck off but had also allowed the appeal while setting aside the decree for divorce. In Vanmala v. Maroti Sambhaji Hatkar (supra) also the High Court of Bombay has taken the view that upon noncompliance of the order passed u/s 24 of the Act the defence of the defaulting party could be struck off.

I am of the considered opinion that this is a fit case in which not only the defence of the respondent/Ramesh Prasad Pandey in the petition u/s 13(1)(iii) of the Act deserves to be struck off but the appeal also deservesto be allowed while setting aside the impugned judgment and decree dated 2-5-1989.

Accordingly, the appeal is allowed. The impugned judgment and decree, dated 2-5-1989 passed by the District Judge, Ambikapur granting a decree of divorce is set aside.